Digital Debut

States Move Slowly to Align with CMS Changes

Since 2019, two states have modified their transfer agreement and H&P requirement laws

BY STEPHEN ABRESCH | FEBRUARY 2022

Only two states, Alaska and Delaware, have adapted their state laws to match the changes made by the Centers for Medicare & Medicaid Services (CMS) in 2019. Louisiana is currently considering a proposed regulation that would partly bring the state in line with CMS changes.

Background

On September 25, 2019, CMS announced a final rule, effective November 29, 2019, to relieve burdens on healthcare providers. As part of that rule, CMS removed the requirements at 42 CFR §416.41(b)(3) for an ASC to have a written transfer agreement with a local hospital or hospital admitting privileges for all physicians who practice within the ASC. The agency replaced this with the requirement that an ASC periodically provide a local hospital with written notice of its operations and patient population served. In the same rule, CMS replaced the requirement that each patient at an ASC have a medical history and physical assessment (H&P) completed by a physician not more than 30 days before the scheduled surgery with the requirement that ASCs develop and maintain a policy that identifies those patients who require a medical history and physical examination prior to surgery.

At the time the rule was finalized, 14 states—Arizona, California, Delaware, Idaho, Iowa, Nebraska, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Vermont, West Virginia, Wisconsin—and Washington, DC, did not have written transfer agreement and admitting privilege requirements. Eight states—California, Idaho, Iowa, North Dakota, Vermont, West Virginia, Wisconsin, Wyoming—and Washington, DC, had no H&P requirements.

Delaware, the First State

Delaware was the first state to undertake the changes. Already lacking state laws requiring a written transfer agreement and admitting privileges, Delaware released a proposed rule in October 2021 that removed the requirement that patients have an H&P completed by a physician not more than 30 days before the date of surgery. In its place, the state added new language requiring an ASC—referred to as a free standing surgical center, or FSSC, in Delaware—to develop and maintain a policy that identifies patients who require an H&P prior to surgery. The proposed rule faced little resistance and was finalized quickly, taking effect December 13, 2021.

Delaware’s quick change stands in contrast to the experience in Alaska, which first released a proposed rule nearly a year earlier in December of 2020 to remove the state’s transfer agreement requirement and replace its H&P requirement with language that defers to the operating physician’s clinical judgement. The proposed changes received support from ASCs in the state, but in public comments the Alaska State Hospital & Nursing Home Association pushed back against removing the transfer agreement requirement, arguing the change would “erode a key tool for health, safety, and quality standards—i.e. transfer agreements—that ensure there is a coordinated plan in place between hospitals and ambulatory surgical centers (ASCs) for emergencies that arise during surgery.” Public comments were published in May of 2021 followed by almost nine months of official silence, with inquiries to the Alaska Department of Health and Social Services revealing that the department had already said it would adopt the rule but that it had been languishing at the governor’s review stage of the process for months, with no expressed reason. Though no explanation for the delay was ever given, the state finalized the rule on February 15, 2022, with an effective date of March 17, 2022.

Going Forward

While states like Massachusetts and Tennessee are interested in pushing changes to their own state laws surrounding transfer agreements, admitting privileges and H&Ps, at present only Louisiana has an active proposed rule on the topic. Released in December of 2021, the proposal would exempt only optometrists practicing at an ASC from the state’s requirement that all medical staff at an ASC be in good standing on the medical staff of a local hospital. Following public comments opposing the limited change to the medical staff in good standing requirement, the Louisiana Department of Health released a compromised version of the rule that would remove the “good standing” requirement for all medical staff at an ASC.

ASCA has produced two resources that detail state laws concerning written transfer agreements, hospital admitting privileges and H&P requirements.

Write Stephen Abresch with any questions.